Furr v. Town of Swansea

• Decision Date: 12 October 1984
• Docket Number: Civ. A. No. 83-3196-0.
• Citation: 594 F. Supp. 1543
• Parties: Buren Lee FURR, Jr., Anthony C. Hill, Jeffery Blake Lindsey, George C. Moore, Bill Dean Randall, William Richard Randall, and Frank J. Townsend, Plaintiffs, v. TOWN OF SWANSEA; Kathryn B. Sharpe (Mayor), W. Venson Huckabee, Hozzie Lee Berry, Llewellyn Sharpe, Malachi A. Williams, Members of Town Council; and Police Chief William H. Hoffman, Defendants.
• Court: U.S. District Court — District of South Carolina

594 F. Supp. 1543

Buren Lee FURR, Jr., Anthony C. Hill, Jeffery Blake Lindsey, George C. Moore, Bill Dean Randall, William Richard Randall, and Frank J. Townsend, Plaintiffs, v. TOWN OF SWANSEA; Kathryn B. Sharpe (Mayor), W. Venson Huckabee, Hozzie Lee Berry, Llewellyn Sharpe, Malachi A. Williams, Members of Town Council; and Police Chief William H. Hoffman, Defendants.

Civ. A. No. 83-3196-0.

United States District Court, D. South Carolina, Columbia Division.

October 12, 1984.

Orin G. Briggs, Columbia, S.C., for plaintiffs; John W. Whitehead, Manassas, Va., of counsel.

George S. Nicholson, Jr., Lexington, S.C., Wilburn Brewer, Columbia, S.C., for defendants.

OPINION AND ORDER

PERRY, District Judge.

The plaintiffs, members of Gethsemane Anabaptist Church, commenced this action against the defendant, Town of Swansea, South Carolina, its Mayor, members of the Town Council and police chief, seeking declaratory and injunctive relief against interference with the exercise by plaintiffs of their rights of freedom of speech and assembly as guaranteed by the First and Fourteenth Amendments to the United States Constitution. Plaintiffs also seek monetary damages. The matter is now before the Court pursuant to the plaintiffs' application for a preliminary injunction.¹

I

The plaintiffs allege in their complaint that each of them have on one or more occasions been arrested for preaching on the streets of Swansea, South Carolina without having previously obtained a permit from the Chief of Police or the Town Council as required by an Ordinance of the Town of Swansea. The Ordinance provides as follows:²

Section 13.401.

PERMIT REQUIRED FOR PREACHING, LECTURING, PUBLIC SPEAKING, EXHIBITING, AND ENTERTAINING ON STREETS.

No gatherings for the purpose of preaching, lecturing, public speaking, exhibition, or entertainment of any nature will be permitted on the streets, sidewalks or publicways, except in accordance with a permit issued by the Mayor, upon written application made not less than twenty-four (24) hours prior to the time of such preaching, lecturing, public speaking, exhibition, or entertainment.

Section 13.401.1.

APPLICATION FOR PERMIT.

Application for a permit for preaching, lecturing, public speaking, exhibition, or entertainment shall contain the time and date of the proposed gathering, the estimated number of persons attending said gathering, and the purpose of such gathering.

Section 13.401.2.

ISSUANCE OF PERMIT.

Upon receipt of an application for a permit for preaching, lecturing, public speaking, exhibition, or entertainment, the Mayor and Council shall issue a permit subject to the following considerations:

1. The time at which the proposed gathering is scheduled to take place;

2. The place at which the proposed gathering is to take place;

3. The number of participants expected to attend the proposed gathering;

4. The manner in which the proposed gathering is to take place;

5. The surrounding businesses and the likely effect of the proposed gathering thereon;

6. Traffic and the likely effect of the proposed gathering thereon;

7. Public convenience, safety, and welfare, and the likely effect of the proposed gathering thereon.

Section 13.401.3.

IMPOSITION OF RESTRICTIONS.

The council, after considering the factors enumerated in Section 13.401.2 above, shall have the authority to impose such time, place, and manner restrictions, conditions, and safeguards upon preaching, lecturing, public speaking, exhibition, or entertainment, as it shall deem fit, proper, and necessary to maintain the public order.

Plaintiffs further allege that their visits to the Town of Swansea were made solely for the purpose of "preaching the Gospel of the Lord Jesus Christ" and that they have conducted themselves in an orderly, courteous and respectful manner; that nevertheless on November 12, 1983 and December 3, 1983 and again on December 10, 1983 they were arrested by the Swansea Police.³

In their answer the defendants admit that the plaintiffs were arrested by Swansea policemen on the three occasions alleged; and they assert that they have requested the plaintiffs to apply for a permit to preach in the streets of Swansea but that the plaintiffs have refused to apply. Defendants assert inter alia that the Ordinance pursuant to which the plaintiffs were arrested is a reasonable regulation as to time, place and manner of the plaintiffs' exercise of their First Amendment rights and that it is not a prior restraint on the exercise of plaintiffs' First Amendment rights. The defendants seek an Order prohibiting plaintiffs from preaching in the streets of Swansea without a permit "as required by the Ordinances of the Town of Swansea." Defendants also seek dismissal of the complaint, together with costs and attorney fees.

The plaintiffs testified during the hearing on the motion that they have periodically, each Saturday at about 10:00 o'clock A.M., proceeded to Swansea for the purpose of preaching the Gospel. They generally proceeded as follows: Only one plaintiff speaks at any given time, usually for a period of ten to fifteen minutes. While speaking, the minister stands near the edge of a sidewalk on Monmouth Street, where most of the commercial establishments are located. The other plaintiffs, while not preaching, generally stand on the other side of the same sidewalk, next to a building. When the minister speaking completes his remarks, another minister comes forward and speaks, usually for the same time period. Plaintiffs acknowledge that they speak loudly in order to be heard, but state that they are orderly in every respect; and that no inconvenience is occasioned to members of the public. The entire process usually concludes at about noon. The largest gathering which has assembled was no more than twelve persons. The preachers do not block the sidewalk or the street. They do, however, hold forth in a fervent, evangelical fashion which many townspeople find offensive.

II

The ordinance, read in its entirety, prohibits preaching and public speaking on the streets of Swansea, South Carolina without a permit.⁴ Moreover, it is understood by the Mayor, Chief of Police and Town Council as having that effect. Persons desiring to preach or otherwise speak must, within "not less than twenty-four (24) hours" prior to such preaching, lecturing or public speaking, apply in writing for permission and state the "time and date of the proposed gathering, the estimated number of persons attending said gathering and the purpose of such gathering." Ordinance, Sections 13.401 and 13.401.1. Otherwise, preaching, lecturing and public speaking, exhibition and entertainment on the streets of Swansea is prohibited. Id. Application for the permit, up until ten days before the preliminary injunction hearing on January 16, 1984, had to be made on a form approved by the Town Council which, in addition to requiring the applicant to list his (her) name, telephone number, address, social security number and driver license number, provided that the "Location desired subject to approval by merchants in area in order to maintain good relations in area and also location desired may be changed to an area agreeable to both parties." The application form also stated that "this permit may be revoked by the Chief of Police or Mayor and Council at any time permit is violated and that the applicant will be subject to said charges violated."⁵ The Ordinance provides that the Mayor and Council shall issue the permit subject to certain conditions including "the manner in which the proposed gathering is to take place" and "the surrounding businesses and the likely effect of the proposed gathering thereon." Ordinance, Section 13.401.2.⁶ And the Ordinance provides that after considering those factors the Town Council "shall have the authority to impose such time, place, and manner, restrictions, conditions, and safeguards upon preaching, lecturing, public speaking, exhibition or entertainment, as it shall deem fit, proper, and necessary to maintain public order." (emphasis added.) Ordinance, Section 13.401.3. It may not be gainsaid that the Town Council's authority under Section 13.401.3 extends to the imposition of any and all limitations deemed by the Town Council to be fit, proper and necessary to maintain public order, including ultimately the denial of a permit.⁷

III

The Ordinance, as written, confers upon the Town Council the absolute power to prohibit preaching and other public speaking on the streets of Swansea. For in deciding whether to impose restrictions upon preaching, lecturing, public speaking or entertainment, the Town Council is to be guided only by its own ideas of the likely effect of the proposed gathering on surrounding businesses, the traffic and the likely effect thereon and the "public convenience, safety, and welfare and the likely effect of the proposed gathering thereon." Thereupon, the Town Council may impose such restrictions "as it shall deem fit, proper, and necessary to maintain the public order." As such, the Ordinance is a prior restraint upon the plaintiffs' rights of freedom of speech and freedom of assembly, guaranteed by the First Amendment⁸ and protected from state interference by the Fourteenth Amendment to the Constitution of the United States. While the exercise of First Amendment freedoms may, under appropriate circumstances be limited,⁹ the Supreme Court has consistently held that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective and definite standards to guide the licensing authority is unconstitutional." Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); See Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Schneider v. State, 308 U.S. 147, 163-165, 60 S.Ct. 146, 151-152, 84 L.Ed. 155 (1939); Cantwell v. Connecticut, 310 U.S. 296, 60...